2003 D e c i sion s O p inion s of the U nit e d S t at e s C our t of Appe al s for the Thir d C ir c uit 10-9-2003 

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w . v i l l a no va . e du/thir dc ir c uit_2003/2111 NOT PRE CEDENT IAL UNITED STATES COURT OF APPEALS FO R T HE TH IRD CIR CU IT
No. 01-3658
PATRI CE PHI LSON, a/ k/ a J USTI CE ALL AH

Appellant
v. JAME S BAR BO, Administrator, Northern States Pris on; and THE ATTORNEY G ENERAL OF THE STATE OF NEW JERSEY Patri ce Phils on,

Appellant

_______________ APPEAL FROM THE UNI TED STATES DIST RICT COURT

FOR THE DISTRICT OF NEW JERSEY (D.C. C iv. No. 98-c v-0224 9 ) District J udge: Honorable W illi am H. W alls

____________ Submitte d Under Third Circ uit L. A.R. 34.1( a)

October 3, 2003 Be for e: R EN DE LL , W EIS and GA RT H, Circu it Judges
.

Filed: October 9, 2003

____________ OPI NION
W EIS , Circuit

Judge
. In 1990, a j ury in the Superior Court of New Jersey c onvicte d petit ioner2

Philson of murde r. After direct app eal and po st-conviction pro ceedings in state court
we re un succ essfu l, he filed a petition for w rit of ha beas corp us un der 2 8 U .S.C. § 225 4 in the D istrict Co urt o f N ew Jers ey.

Th e D i st r i ct Co urt he l d a n e vi de nti ary he ari ng an d d en i edt he pe t i t i on . We granted a certi ficat e of appealabi lit y l imiting the i ssue, however, to whether Phil son’s t rial law yer’s f ailur e to in terv iew certa in w itnes ses c ons titute d an inad equ ate d efe nse .

The murder occurr ed about 2: 30 a.m. on a s treet in downtown Newark, Ne w J erse y. The victi m h ad d rive n hi s au tom obi le to t he s cen e to c ollec t som e m one y. He wa s acco mp anied by two teena ge girls , Aish a Jon es an d Eric a D aw son. A s the v ictim returned from his col lection err and, he was accos ted bythree i ndividual s, petiti oner Philson, Hassan Carter

and Damian Wise. The vic tim was shot while res isting an apparent robberyatte mpt, and di ed at the scene. Philson and Carter were both indi cted for the murder, but Carte r was acquitted at

tri al. Philson retai ned John Vantuno, a f ormer prose cutor and an experie nced def ens e atto rne y, for re pre sen tatio n at tr ial.

Both of the t eenage girls, Jones and Dawson, te sti fied that the y sa w Philson shoot the victim. In a dditi on, witne ss Glenn Copeland s aid that he hear d an indivi dual threaten the vi ctim shortly before the shot was fi red. I n the court room, Copeland iden tified Ph ilson as th at pe rson .

There were numerous i nconsistencies i n the evi dence at t rial . Witnes ses3

differe d as to whether

the shoot er wore a brown or gre en jacket and whether Phil son and Wise had switche d jacket s. Wise testi fied that Phil son had shot t he victim and soon after wards theyencounter ed each other in an apartment near

the scene occupied by Carolyn M oore and Loretta B arber. W ise said that Philson m ade dam aging, inculpa tory stat ements at

that t ime. I n their

statements to t

he polic e, Barber

and Moore denied that Ph ilson and W ise h ad a ctua lly ente red their apa rtme nt.

One and one-half y ears after the t rial , Cawana Dawson submitted an affidavi t dis puting her

sister Eric a’s al leged pri or acquai ntanceship with Phil son and her id entif ic at io n of

hi m as th e pe rs on wh o ha d sh otth e vi ct im. In his pos t-t

rialproceedi ngs, Phi lson contended that his attorneyVantuno was ine ffective in failing to interv iew C awan a Daw son and call her as a w itness. In additio n, Ph ilson ch alleng ed his lawyer’s failure to call M oore and B arber. H e asse rts that t hey would have testifie d that t hey had refused him ent ry into t heir apartment and, thu s, w oul d ha ve c ont rad icted W ise’s alleg ation s ab out Ph ilson ’s inc ulp ator y statem ents .

Additional ly , another witnes s, Quintina Holden, was not call ed. In her stat ement to t

he polic e she rel ated that she had s een two girl s take t he coat fr om the victi m a fter he w as sh ot. S he h ad n ot, h ow eve r, w itnes sed the a ctua l sho otin g.

Th ese con tenti ons we re ra ised at the state pos t-co nvi ction pro cee din g. After oralargument and a t horough revi ew of the recor d, the state judge concl uded that tri al counselhad sati sfied t he minimum standards for effec tive a ssis tance of couns el. The4

judg e con clude d that, “[ i]t was the larg e corp us of insurm oun table a nd in contro vertible evidence pr esented at trial, which incl uded severaleyewit nesses to the murder, which resulted in the def endan t’s conviction an d [it] was n ot due to de fense co unsel’s perfo rman ce.” F urther , the jud ge fo und that “d efen se co unse l could have reaso nably chosen not t o explore t

he specif ic avenues of examinati on proposed by[Phils on] for fear that f urther inquiry might

have exposed i nformati on detri mental t o the defens e.” The stat e court’ s denialof Phils on’s post -convict ion rel ief was affi rmed on appeal. The New Jers ey Su pre me Co urt d enie d ce rtific ation
.

At the concl usion of Vantuno’ s test imony and e xtended ar gument in the Distric t Cou rt, the jud ge an nou nced his de cision f rom the be nch. A ssessin g the re cord in accordance wit

h Stri ckland v. Washington , 466 U.S. 668 ( 1984), t he dist rict judge st ated, “I don’t belie ve Vantuno’s r epresent ation f ell be low an objective st andard of reasonabl eness . . . [ Even] assuming t hat it did, c ertai nly the outc ome would not have been different in a ll l ikeli hood . . . .”

The court obse rved that Mr. Vantuno str ongly denied ever hearing Phi lson speak of cal ling Cawana Dawson as a witnes s. The j udge found, “Ido not beli eve the name [of C awana] w as given to [Vantuno] by [Philson] in the context of being call ed as a defense witness. ” Even assuming that Phil son was correc t in s tati ng that he gave Cawana’s name to his lawyer , the judge note d that s he had another sister who might have been associ ated with Philson. In any event, the ey ewitness testimony of t he two teenage5

girls w ould not h ave b een w eake ned to the ex tent of prod ucing a diff erent re sult at trial.

With respec t to Barbe r and Moore, thejudge note d that t heir testi mony mi ght ha ve ca st

dou bton Wi se ’s st at eme nt s, but it wou ldnot

ha ve af fe ct ed th at

of th e t wo girls. M oreo ver, V antun o said that he did n ot call B arber a nd M oore beca use th eir testimony would have provided t he state with evi dence of Phil son’s fl ight from the scene of th e crim e. The district j udge also di scounted any value t o the al leged knowledge of Quintina Holde n. She did not see the s hooting and he r sight ing of two girls t aking a coat from the victim as he lay on the street wou ld not have affected Jo nes and Daw son’s testimony about the m urder.

Our review of st ate habeas corpus cl aims is limi ted bythe A.E.D.P. A., 28 U.S .C. § 2 254 . A p etition m ay not be gran ted on claim s adju dicate d on the m erits in state court unl ess the decisi on was contrary t o or invol ved an unreasonable appl ication of clearly estab lished f edera l law o r wa s base d on an un reaso nable determ ination of the facts in li ght of the evidence pr esented i n the st ate proc eeding. 28 U.S.C. § 2254(d) . As the Sup reme Co urt exp lained “[t]he state co urt’s ap plication mu st hav e bee n ‘ob jectively unreasonabl e.’” Wig gins v . Smith , 123 S. C t. 25 27, 2 534 (20 03)
.

Stri ckland v. Washington , 466 U .S. 668 (198 4) provide s the legal standard applic able t o clai ms of ineffective counsel . Fir st, counsel’ s performance must have been6

defic ient an d, seco nd, m ust ha ve pr ejudic ed the defe nse. A s the C ourt sa id, “[s]tra getic choices made af

ter l ess than complete i nvesti gation are reas onable pre cisel y t o the ext ent that r eas ona ble p rof essio nal ju dgm ents sup por t the l imita tion s on inv estig ation
. . . [C]ounsel has a dutyto make reas onable i nvesti gations or to make a r easonable decisi on that m ake s pa rticu lar in ves tigat ion s un nec essa ry. In any ineffectiveness case, a parti cular decisi on not to i nvesti gate must bedirectly assess ed for reas onableness in allthe circumst ances, apply ing a heavymeasure of deference to couns el’s judgments. ” Id . at 690 -91
. The stat e court f ollowed feder al law as arti culat ed in the Stri ckland opin ion. T he issu e here , theref ore, is w hethe r the de cision w as ba sed o n an u nreas onab le deter min at io n of

th e fa ct s i n l ig htof t

he e vi den ce p re se nt ed i n the s ta te cou rt . 2 8 U. S. C. § 22 54( d)(2 ).

The stat e judge per formed a verythorough r eview of the t rialrecord after hearin g exte nsive argu men t by coun sel in the post-c onv iction p rocee ding . The only weakness in the case at

that poi nt was the abs ence of tes timonyfrom Vantuno. That defici ency, however, was remedi ed in the dist rict court hearing where Mr. Vantuno testifie d at le ngth on his conduct of the defense.

We have reviewed thi s case very carefull y and conc lude that the Dis tri ct Court did not

err i n dismis sing the peti tion. Philson f ocused his chall enge on thre e areas wh ere c oun sel w as a llege dly ine ffe ctive and we wil l com me nt o n ea ch in turn .7 First, Ph ilson co ntend s that he told V antun o that C aw ana D aw son s hou ld have been cal led as a wit ness. Vantuno denied that al legation and the dist rict judge accepted t

hat dis avowal, “i n the cont ext of bei ng call ed as a defensewitness. ” Non etheless, even a ssuming that Philson’s allegation is correct, we fe el that Caw ana’s imp eac hin g tes timo ny w oul d no t hav e be en e nou gh t o af fec t the r esu lt.

We have exam ined th e aff idavit o f Ca wa na D aw son a nd ar e inclin ed to view it w ith some sk epticism. The affidavit w as not filed un til one and on e-half years after the convi ction wit

hout anyexplanation for t he delay . Essent

iall y, it s tate s that

the two teenager s were unsure of t he identity

of the shooter and whether he wore a brown or green jacke t. Tha t discrep ancy, w hile sign ifican t, was alread y reveale d in the statem ents giv en to the p olice , and wa s ex plo red dur ing the te stim ony a t trial.

Moreover, the affidavi t accuse d Erica of mis stating the f act that she had known Philson becaus e he “used t o go with my s ist er Cawana.” The affi davit i s incor rect in thi s respec t because at trial Erica di d not menti on Cawana at all . Rather , it was Aisha Jon es w ho t estif ied th at sh e ha d kn ow n P hilso n be cau se h e “u sed to g o w ith F elicia , . . . Erica’ s sis ter” – not

Cawana. A crucial point of t he affidavi t, t

herefore, was incorr ect and und erm ines mu ch o f C aw ana ’s ac cus ation s tha t Eric a ha d lied on t he w itnes s stan d. Althou gh Jone s’ testimony varied from that which she gav e before the Gran d Jury, where she li nked Cawana rather t han Felic ia Dawson with Phil son, i t was the t rialtestimony which Caw ana spec ifically challenged. We conclud e that, even if called, C awan a’s8

imp eac hin g tes timo ny w oul d no t hav e af fec ted th e res ult o f the trial.

Philson a lso criti cizes t

he decisi on not to ca ll Barbe r and Moore to the stand. In the cour se of dis covery , Vantuno had re ad the st atements theyhad given t o the police . Both statem ents alle ge tha t Philso n and Wis e cam e to the ir apartm ent in th e early morning hours but

had been refuse d entrybecause of the lat eness of the hour. Phi lson contends t

hat the ir testi mony would have undermined Wise’s damagi ng alle gations of the petit ion er’s i ncu lpato ry state me nts m ade in th at ap artm ent.

As a matter of

tri al st rategy , Vantuno deci ded not to c all t hese women as wit nes ses b eca use their testim ony w oul d ha ve s upp lied e vid enc e of Ph ilson ’s flig ht. Giving appropriate deference to counsel’ s judgment i n light of all the ci rcumstance s here, we cannot sayhe was ineffective in hi s str ategi c decisi on. Moreover, as the di stri ct judge pointed out , the testimony of t hese two women “would not have knocked out [Aisha] Jon es a nd E rica D aw son ’s eyew itnes s test imo ny.”

The thir d alle ged derel icti on of counsel was hi s fail ure to ca ll Quintina Ho lden. W hile M s. Ho lden d id sup ply police with inform ation a bou t even ts imm ediate ly following the shooting, she could not furnish anyevidence about the perpetrator because it was t he shot t hat al erted he r and caused he r to go fr om her house to t he scene. The fact that s he saw two girl s take t he victim’s coat

and flee t

he scene would not

have aided t

he de fe ns e. Tha t e vi de nc e wo ul d ha ve mer el y re fl ec te d up on t he ch ar ac te r o f the two9

teena gers. It w ould not, as th e district ju dge n oted, h ave “ und ermin e[d] th e bas ic believ ability of the ir assertio n that th ey saw petition er sho ot the v ictim.” A ccord ing to the dis tri ct judge , the alle gation t hat such testi mony would weaken thei r identific ation of the shoot er “makes no prof essiona l sense to me and I don’t buy i t both as a lawye r and as a judg e.” W e can not d isagre e w ith that as sessm ent.

The tri al of this cas e was marked by anumber of inconsi stenci es in t he testimony of wit

nesses who were at

the scene . These cont

radict ions were expl ored by
cou nse l at len gth and we re su bm itted to th e jur y that h ad th e du ty to res olv e the m.

After our s tudy of the re cord, we are sati sfied t hat the dist

rict judge cond ucted a com preh ensiv e hea ring, giv ing p etitioner and h is cou nsel ev ery opp ortun ity to pres ent the case. We note t hat the dist

rict judge even permitt ed Phils on, acting pro se , to argue pe rsonal ly in addit ion to couns el’s comprehensive present ation. We find no revers ible e rror and, accor dingly , the judgment of t he District Co urt w ill be aff irme d.

______________________________ TO THE C LERK:

Please fi le the foregoing Opini on.

/s/ Joseph F. Weis , Jr .__ United States Circui t Judge